• (concurring specially).
I respectfully disagree with part I.A. of the opinion of the court, which concludes that the district court erred by denying Crane’s discovery motion. In light of the factual record before the district court in this case, as well as the uncertainty concerning whether the state had or has possession or control of the Intoxilyzer source code, I would conclude that the district court did not err by denying Crane’s motion. Accordingly, I concur in the judgment.
Crane’s discovery motion is based on rule 9.01, subdivision 2(1), of the Minnesota Rules of Criminal Procedure, which authorizes a district court, if certain conditions are satisfied, to “require the prosecuting attorney ... to assist the defendant in seeking access to specified matters relating to the case which are within the possession or control of an official or employee of any governmental agency, but which are not within the control of the prosecuting attorney.” A defendant is not entitled to such an order unless he has shown that the source code is “within the possession or control of an official or employee of any governmental agency.” Minn. R.Crim. P. 9.01, subd. 2(1). Crane did not submit any evidence to the district court in support of his motion. The state submitted only one document, an August 2, 2007, affidavit of Glenn G. Hardin. The opinion of the court has identified the pertinent parts of, Hardin’s - affidavit. In light of this factual record, the district court, in my view, did not err by, concluding, for purposes of this case, that the state does not have possession or control of the source code.
The district court’s ruling in this case is not incompatible with the supreme court’s recent decision in State v. Underdahl, 767 N.W.2d 677, 2009 WL 1150093 (Minn. Apr. 30, 2009) (Underdahl II), pet. for reh’g filed (Minn. May 5, 2009). The supreme court framed the issue in that case as “whether the district courts’ findings that the State had possession or control of the source code were clearly erroneous.” Id. at 686, 2009 WL 1150093, at *8. The supreme court analyzed only one piece of evidence — a “request for proposal (RFP) issued by the State when replacing the previous version of its breath-test instrument” — and reasoned simply that the RFP “supports [the district courts’] conclusions that the State had possession of the source code.” Id. The supreme court concluded merely that “it was not an abuse of discretion for the district courts to find that the source code was in the possession or control ⅝ of the State.” Id. The supreme court’s language reveals that it did not intend to decide the possession-or-control issue as a matter of law. Rather, the supreme court’s language indicates that the issue is, at least at the present time, to be decided on a case-by-case basis. The language used by the supreme court further indicates that a district court’s ruling on the issue is subject to a deferential standard of review. If there were only one permissible way to resolve the issue of possession or control of the source code, *76the supreme court would have so stated in clear terms.
The supreme court’s opinion in Underdahl II provides additional reasons why a district court’s ruling on the issue of possession or control of the Intoxilyzer source code is entitled to deference. Simply put, it is apparent that the rulings of the district courts that were affirmed in Under-dahl II are counterfactual. It seems well-accepted at the moment that the state does not have actual possession or control of the source code in the sense of having the ability unilaterally to produce the source code to a defendant in a DWI case or to cause some other person to do so. The supreme court acknowledged the existence of a pending federal lawsuit in which the state has sued the manufacturer of the Intoxilyzer to obtain some form of rights to or disclosure of the source code. Id. at 687 n. 7, 2009 WL 1150093, at *8 n. 7. It appears that the respective rights and obligations of the state and the Intoxiiyzer manufacturer are contingent on the future outcome of that lawsuit.1 Although the pending federal lawsuit was commenced after the district court ruled on Crane’s motion, the prospect of such a lawsuit was mentioned by the supreme court before the district court’s ruling.' Underdahl v. Commissioner of Pub. Safety (In re Commissioner of Pub. Safety), 735 N.W.2d 706, 713 (Minn.2007) (Underdahl I). In any event, Underdahl II should not be interpreted to have settled the issue of possession or control of the source code in a manner that deprives a district court of its factfinding role or its discretion to resolve discovery disputes according to the circumstances of a particular case. The supreme court’s holding that two district courts did not clearly err or did not abuse their discretion by concluding that the state has possession or control of the In-toxilyzer source code, when it is simultaneously acknowledged that the state does not have actual possession or control of the source code, is a strong indication that a district court’s discretion when considering this issue is exceedingly broad.
The indeterminate nature of the state’s rights and interests in the source code also is illustrated by the supreme court’s previous discussion of the issue. In Underdahl I, in affirming this court’s denial of the state’s petition for a writ of prohibition, the supreme court noted the parties’ arguments concerning federal copyright law. 735 N.W.2d at 712. But the supreme court refrained from even attempting to resolve those arguments, stating, “we cannot decide the copyright issues raised” because the parties’ briefs “provide only a superficial application of that law to the facts of this case” and because “the factual record before us is inadequate, thereby making any determination regarding either copyright theory impossible.” Id. In Underdahl II, the supreme court did not conduct any analysis of intellectual property issues, and the supreme court also did *77not form any conclusions as to whether the state might have contractual rights or interests in the source code. Rather, the supreme court simply held that the district courts did not commit an abuse of discretion by finding, based on the RFP, that the state had possession or control of the source code. Underdahl II, 767 N.W.2d at 687, 2009 WL 1150093, at *8. Until the state’s rights and interests with respect to the source code are clarified, or until the supreme court decides the issue on a statewide basis, two district court rulings based on a single document, unsupported by the complex legal analysis that the supreme court previously said is necessary, should not be elevated to a legal rule that binds the state in all DWI cases.
Even if one accepts the legal fiction that the state has possession or control of the Intoxilyzer source code because of its yet-to-be-vindicated property or contractual rights, the district court in this case did not abuse its discretion in light of the relief sought by Crane. By relying on subdivision 2(1) of rule 9.01, Crane did not seek an order that would ensure delivery of the source code.2 Rather, Crane sought nothing more than the prosecuting attorney’s “diligent good faith efforts to cause the official or employee [of another governmental agency] to allow the defendant access at any reasonable time and in any reasonable manner to inspect, photograph, copy, or have reasonable tests made.” Minn. R.Crim. P. 9.01, subd. 2(1). Based on the factual record before the district court, and based on the district court’s general awareness of the source code issue in the wake of Underdahl I (which was decided only one month before the motion hearing, and which the district court expressly mentioned during the motion hearing), the district court appropriately recognized the practical reality that the prosecuting attorney would not be successful in obtaining the source code for Crane. The district court noted that the state “can’t get” the source code because “the manufacturer won’t provide it” and stated, “with that in mind, we’re not going to order it.” Crane does not argue that the prosecuting attorney’s diligent good faith efforts would have caused a state official or agency to be successful in inducing the Intoxilyzer manufacturer to surrender the source code. Thus, in addition to the reasons stated above, I also would conclude that the district court did not abuse its discretion by denying Crane’s motion because the district court reasonably determined that an order granting the motion would be futile.
In sum, I would conclude that the district court did not err by denying Crane’s motion brought pursuant to rule 9.01, subdivision 2(1). On that basis, I join in the affirmance of Crane’s conviction.
. There is, however, reason to doubt whether the resolution of the pending federal lawsuit will conclusively determine whether the state has possession or control of the source code. The federal district court recently rejected a joint motion to approve a settlement agreement between the state and the manufacturer and to enter a consent judgment and permanent injunction. In doing so, the district court encouraged the parties to submit another settlement agreement. But the federal district court warned the parties that "[a]ny such settlement should also clearly indicate that it is not binding upon Minnesota state courts and not determinative of the issues such courts face in determining the right of litigants to Source Code access or relevance.” Minnesota ex rel. Campion v. CMI, Inc., No. 08-CV-603, slip op. at 8 (D.Minn. Feb. 9, 2009). The federal lawsuit is scheduled to be tried in May 2010. Minnesota ex rel. Campion v. CMI, Inc., No. 08-CV-603, slip op. at 3 (D.Minn. Mar. 5, 2009) (amended scheduling order).
. Such relief may be obtained pursuant to subdivision 2(3), which authorizes a district court to "require the prosecuting attorney to disclose to defense counsel ... relevant material and information” that is actually possessed by the prosecuting attorney. See Minn. R.Crim. P. 9.01, subd. 2(3). Subdivision 2(1), however, by its express terms, applies only to matters that are not in the possession or control of the prosecuting attorney but are "within the possession or control of an official or employee of any governmental agency.” Minn. R.Crim. P. 9.01, subd. 2(1). Crane did not move for, and could not have obtained, relief under subdivision 2(3) because it is undisputed that the prosecuting attorney in this case, the city attorney for the city of Mankato, does not have possession or control of the source code.